Marxism and Human Rights — Paul O’Connell – Legal Form 1

Legal Form

A Forum for Marxist Analysis of Law

Marxism and Human Rights —

Paul O’Connell

NOVEMBER 25, 2017MAY 11, 2018

Introduction

Human rights are “the doxa of our age”. [1] An idea, practice, and vocabulary
which impacts every sphere of moral, philosophical, political, legal, and
sociological enquiry. As such, we cannot ignore human rights. For Marxists,
particularly those engaged in the study of law, state, and rights, human rights
are also a vitally important subject. As Marx and Engels argued in The German
Ideology, law under capitalism takes on “its most general form as the rights of
man”. [2] Arguments about human rights, then, are central to more general
debates about Marxist analysis of and approaches to law, state, and rights.

Historically, a simplistic common sense has held that Marxists could not,
consistent with the Marxist canon, “believe in human rights”–Steven Lukes, in
particular, has sustained a veritable one-man co age industry recapitulating this
central conviction. [3] There is, of course, some plausibility to this argument.
From Marx’s denunciation of the atomistic and narcissistic character of
bourgeois rights in “On the Jewish Question” [4] to his withering elucidation of
the narrow horizon of bourgeois right in the “Critique of the Gotha Program”
[5], it is clear that Marx was no doe-eyed partisan of human rights.

At the same time, it is equally true that both Marx and his long-time collaborator
Engels wrote on numerous occasions throughout their lives in support of human
rights. This ranges from Marx’s early defence of freedom of expression and his
later defence of the right to universal suffrage, through Engels bemoaning
a acks on the right to protest in England, to his celebration of the potential of
expanding civil and political rights for working-class political struggles, and to
Marx’s glowing discussion of the campaign for limited working hours in the first
volume of Capital and the invocation of the struggle for rights in his inaugural
address to the First International. [6]
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What all of this means is that from Marx and Engels we have inherited a view of
human rights that is “critical, differentiated, underdeveloped and, in more than a
few instances, ambiguous”. [7] There is, in other words, no canonical steer from
the intellectual founders of Marxism as to how we should understand human
rights today, and approach the question of human rights from within the Marxist
tradition.

While the Marxist canon is devoid of a single, clear line on the question of
human rights, the broader tradition does provide us with the resources
necessary to begin to construct a theory of, and approach to, human rights (as
well as law and the state more broadly). Here I will briefly sketch out three key
points for thinking about human rights today from within the Marxist tradition.
They are: (i) the structural character of capitalism and how it militates against
the enjoyment of human rights; (ii) the need for a dialectical understanding of
human rights (and indeed of all social phenomena); and (iii) the importance of
agency and social struggle in articulating and contesting human rights.

Capitalism and Human Rights

The first point is relatively straightforward. The structural character of the

capitalist system means that it inevitably and invariably militates against the
realisation of its own vaunted promises. This lies at the heart of Marx’s critique
of bourgeois rights in “On the Jewish Question”. Marx here acknowledges that
the historical achievement of the rights of man is a step forward, but stresses that
the political emancipation delivered by these rights can never lead to real,
human emancipation.

The problem is that the “so-called rights of man” are the rights of atomised,
public individuals–the formal freedom of free and equal commodity-exchanging
individuals. But the heart of the capitalist system beats in the realm of “civil
society”, in the private sphere where exploitation, inequality, and injustice are
the norm. So while human rights mark a step forward, they will and must
remain structurally denied and undermined in a system premised upon the
exploitation of the many by the few.

This insight rings true today, when the work of moderate economists like Pike y
[8], and the revelations of obscene wealth stashed in offshore accounts [9], all
a est to the structural tendency of capitalism to immiserate the many, to the
advantage of the few. In myriad complex ways, this system of exploitation and
inequality (which takes the form of imperialism on a global scale) ensures the
denial of human rights. Hence, a starting point for a Marxist understanding of
human rights will be to stress that structure prevails, and that the promise of
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human rights can never be realised under a system of global capitalism.
Violations of human rights are not an aberration, but instead are the very essence
of the system.

Dialectical Analysis

A second crucial aspect of a Marxist approach to human rights is the need for a
dialectical materialist understanding of human rights. While critiques of human
rights abound in the left-liberal milieu, such critiques tend to repeat the
analytical sins of the mainstream liberal accounts they purport to eviscerate. The
first mistake is the simplistic, dichotomous rendering of human rights. Human
rights are presented as either good or bad, as exclusively serving the interests of
the powerful or the powerless, as either apolitical or mere ideological veneer.
None of these approaches captures the true complexity of human rights as a set
of social relationships and processes.

In contrast, one of the key insights of the Marxist tradition is the understanding
of all phenomena as contradictory, interrelated, and in flux. With respect to
human rights, this point is captured well by Ed Sparer, who once argued that
“the potential contribution of human rights … coexists with their negative
potential”. [10] In other words, human rights are at any given moment positive
and negative–they advance the interests of the popular masses, while also
sustaining and legitimating the status quo. Exactly how any particular struggle
over human rights plays out depends upon the complex relation of forces in
play. But human rights, as such, are neither inherently emancipatory nor
inherently conservative; they are a complex combination of both tendencies.

It is essential, then, for a Marxist approach to human rights to eschew the sterile
pseudo-radicalism of being “against human rights”, and dismissing human
rights as always and necessarily complicit only in the maintenance of the status
quo. Instead, a Marxist analysis should embrace, rather than elide, the complex
character of human rights, and seek to understand the specific constellation of
forces in any given human rights debate or struggle. This, of course, is
frustrating in that it denies shallow certainty. But it allows for a sharper, more
realistic understanding of the nature and role of human rights in the world
today.

Social Struggle and Human Rights

In his “Theses on Feuerbach”, Marx famously observed that the “philosophers

have only interpreted the world in various ways; the point is to change it”. [11]
This simple, rich thesis condenses the very essence of Marxism: it is a system of
philosophy geared to understanding the nature of the world around us, but,
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crucially, with a view to transforming it. The protagonistic agency of the
working and popular classes [12] is at the heart of Marxism, and therefore
Marxist theory and analysis have to be focused on questions of social practice.
This point is well made by Lukács, who notes that for Marxists “the culmination of
all genuine theory, its consummation, [is] the point where it … breaks into
practice”. [13]

As such, when it comes to human rights, Marxist analysis should, in contrast to

many other critical accounts, foreground the role of social struggles in
articulating, contesting, and advancing human rights claims. [14] A ending to
the ways in which social movements mobilise the language of human rights in
their struggles for immediate demands (e.g. housing, water, land, food, health
care) can reveal how such struggles often lead to contestation of the broader
social order. In this context, rather than serving as mere apologia for the extant
social order, the language of human rights is routinely mobilised as an
immanent critique of the shortcomings of this order.

Human rights, then, can and do provide an important resource for movements
of working-class and other marginalised and oppressed peoples to contest the
existing order of things, and a terrain for political struggle and education for
such social groups. [15] It is crucial that Marxists engage such struggles in a way
that acknowledges the potential value of such claims, and of the minor victories
than can be won, while also stressing the structural character of the system of
global capitalism, which necessarily militates against the meaningful protection
of the interests associated with human rights claims.

Conclusion

As we grapple with developing Marxist theories of law and the state, theories
that are adequate to the challenges of twenty-first century capitalism, the
question of human rights will be one of the central points of analysis and debate.
A Marxist approach to the human rights question has to be qualitatively distinct
from prevailing left-liberal critiques. Rather than political quietism dressed up as
radical critique, Marxist analyses should stress the tension between agency and
structure, the necessary contradictions in human rights, and the centrality of
social struggle in transforming understandings of rights, and society more
generally. Approaching human rights from within the Marxist tradition allows
for an uncompromising assessment of the real contradictions that inhere in the
social practices and relationships that structure human rights. It allows us to
acknowledge the potential and value of human rights, while at the same time
stressing that any possibility of true human flourishing requires transcending the
system of global capitalism.
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[1] Stefan-Ludwig Hoffmann, “Introduction: Genealogies of Human Rights”, in
Stefan-Ludwig Hoffmann (ed.), Human Rights in the Twentieth Century
(Cambridge University Press, 2011) 1, 1.

[2] Karl Marx and Frederick Engels, The German Ideology [1846], in Karl Marx and
Frederick Engels, Marx-Engels Collected Works, vol. 5 (International Publishers,
1976) 19, 209; also available at h ps://www.marxists.org/archive/marx/works
/1845/german-ideology/ (h ps://www.marxists.org/archive/marx/works
/1845/german-ideology/).

[3] For the same (broad) argument spread out over three decades, see Steven
Lukes, “Can a Marxist Believe in Human Rights?”, 4 (1981) Praxis International
334; “Marxism and Morality: Reflections on the Revolution of 1989”, 4 (1990)
Ethics & International Affairs 19; “On the Moral Blindness of Communism”, 2
(2001) Human Rights Review 113; and “Marxism and Morals Today”, 24 (2015)
New Labor Forum 54.

[4] Karl Marx, “On the Jewish Question” [1843], in Karl Marx and Frederick
Engels, Marx-Engels Collected Works, vol. 3 (International Publishers, 1975) 146;
also available (in different translation) at h ps://www.marxists.org/archive
/marx/works/1844/jewish-question/ (h ps://www.marxists.org/archive
/marx/works/1844/jewish-question/).

[5] Karl Marx, “Critique of the Gotha Programme” [1875], in Karl Marx and
Frederick Engels, Marx-Engels Collected Works, vol. 24 (International Publishers,
1989) 75; also available (in different translation) at h ps://www.marxists.org
/archive/marx/works/1875/gotha/ (h ps://www.marxists.org/archive
/marx/works/1875/gotha/).

[6] See Paul O’Connell, “On the Human Rights Question”, Human Rights
Quarterly (forthcoming in 2018), available at h ps://papers.ssrn.com
/sol3/papers.cfm?abstract_id=3065757 (h ps://papers.ssrn.com
/sol3/papers.cfm?abstract_id=3065757).

[7] Amy Bartholomew, “Should a Marxist Believe in Marx on Rights?”, 26 (1990)

Socialist Register 244, 247.

[8] Thomas Pike y, Capital in the Twenty-First Century (Harvard University Press,
2014).

[9] See the information obtained and made available by the International
Consortium of Investigative Journalists, available at h ps://www.icij.org
/investigations/paradise-papers/ (h ps://www.icij.org/investigations/paradise-
https://legalform.blog/2017/11/25/marxism-and-human-rights-paul-oconnell/
Marxism and Human Rights — Paul O’Connell – Legal Form 6
papers/).

[10] Ed Sparer, “Fundamental Human Rights, Legal Entitlements, and the Social
Struggle: A Friendly Critique of the Critical Legal Studies Movement”, 36 (1984)
Stanford Law Review 509, 519.

[11] Karl Marx, “Theses on Feuerbach” [1845], in Karl Marx and Frederick
Engels, Marx-Engels Collected Works, vol. 5 (International Publishers, 1976) 3, 5
(emphases in original); also available (in different translation) at
h ps://www.marxists.org/archive/marx/works/1845/theses/theses.htm
(h ps://www.marxists.org/archive/marx/works/1845/theses/theses.htm).

[12] Michael A. Lebowi , “Protagonism and Productivity”, 69 (2017) Monthly

Review, available at h ps://monthlyreview.org/2017/11/01/protagonism-and-
productivity/ (h ps://monthlyreview.org/2017/11/01/protagonism-and-
productivity/) .

[13] Georg Lukács, Lenin: A Study on the Unity of His Thought (Verso, 2009 [1924]),
41–42 (emphasis in original); also available at h ps://www.marxists.org/archive
/lukacs/works/1924/lenin/index.htm (h ps://www.marxists.org/archive/lukacs
/works/1924/lenin/index.htm).

[14] See Paul O’Connell, “Human Rights: Contesting the Displacement Thesis”,
Northern Ireland Legal Quarterly (forthcoming in 2018), available at
h ps://papers.ssrn.com/sol3/papers.cfm?abstract_id=3065748
(h ps://papers.ssrn.com/sol3/papers.cfm?abstract_id=3065748).

[15] See, e.g., Prabhat Patnaik, “A Left Approach to Development”, 45 (2010)

Economic and Political Weekly 33.

Paul O’Connell is Reader in Law and Associate Dean of Research in the Faculty of Law
and Social Sciences at SOAS, University of London.

BLOG AT WORDPRESS.COM.

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